Notes and thoughts on Montana's election results

MH will resume the usual cultural coverage next week, once the election results have been talked about.

Congratulations to the star of the night:

That is to say, Tim Fox, who became the first Republican elected Montana's Attorney General since Marc Racicot in 1988 (and really, since Racicot jumped parties to run as a Republican, we may have to dig back even further to find the last life-long Republican elected to that office.) As I have previously noted, Fox is to be commended for his tenacity in pursuing this position over two consecutive bruising election cycles. Sheer willpower is one of the most important traits that someone involved in politics can have, and Fox has proven he has it.

What goes around, comes around:

While things could still change as voting continues in Yellowstone County, Sen. Gary Branae appears to have been defeated by Elsie Arntzen in SD 27 here in Billings. I'm putting this particular Senate race right up front because some things deserve to be remembered, and the back story is one that probably won't get any mention in the mainstream press.

The Democratic Party richly deserves to lose Branae's seat, on a moral and ethical level. He won that seat quite narrowly in 2008, and only because some of the worst personal (and illegal) campaign attacks that Montana has seen in state legislative races.

His opponent, Jack Sands, who is as fine a man as one is likely to meet, had spent time as a public defender, and as such, had represented some unsavory characters in his day. That's the job of a public defender (I pointed this out when being critical of this particular line of attack on Supreme Court candidate Ed Sheehy this year.)

In the 2008 election, the Montana Democratic Party made extensive phone calls to homes in the district claiming that Sands was mixed up with drug dealing. It's not illegal to lie in political materials, of course -- the illegal part was that the callers wouldn't identify themselves, and the caller ID was routed through Romania (yes, that Romania.) Some detective work tracked it down. The hits kept coming, and Branae's weak-kneed and equivocating "protests" about the calls came very late and very timidly -- and only after the damage was fully done.

Control of the Senate was potentially at stake (Republicans gained control anyway, in spite of the huge Democratic wave in 2008 -- Montana was the only state in which the GOP flipped control of a legislative body that year), but more importantly, Democrats surely wanted to keep a talented, moderate Republican lawyer from getting his first toehold into Montana political life -- wouldn't want him to end up as Attorney General or on the state Supreme Court, would we? There are ways for candidates to get word quickly and unequivocally to state parties, telling them they want negative attacks to stop. The party doesn't have to listen, but if the party knows the candidate is going to make a public stink, they will stop. So Branae has absolutely no excuse for not having stopped these attacks, and the Democrats had no excuse for using such dirty tactics.

It is that sort of highly personal smear that discourages good people from running for office. It is sort of like standing there, slapping a tire iron into one's hand, saying -- "nice little reputation you have there... be a shame if anything were to happen to it. You really sure you want to run for office?" One hopes that Branae goes down to defeat in the final count, and that a take-home lesson will be learned -- it is indeed possible to go much too far in a campaign, and what goes around...

Anyway, it was a bit of delicious schadenfreude to see that Branae appears to be losing to one of the best retail politicians that Yellowstone County Republicans have: Elsie Arntzen.

Steve Daines comes through:

We knew he would, but it is still gratifying to see Steve Daines getting ready to head off to Washington as Montana's next U.S. Congressman. He will do us proud and will stay out of any serious trouble -- personally or politically -- leaving him in good position to make a run at either the governor's seat or a U.S. Senate seat in the future. He will be formidable. Right now, our front-line "bench" consists of Daines and Fox, and both have proven their political chops.

Predictions gone bad:

I only missed two calls in my predictions (unless Sandy Welch gets a recount and prevails against Denise Juneau in the State Superintendent race -- I hope I get to be wrong about that one.) Unfortunately, they were the two most high-profile races in Montana -- the U.S. Senate race and the governor's race. Two factors were key:

1. I overestimated Mitt Romney's margin of victory in Montana. While I didn't expect the kind of 40 point victory he got in Wyoming, I expected it to be closer to 20 than to 10. Instead, Romney barely got a double digit win in Montana. The anti-Obama undertow I had expected thus didn't materialize here in Montana, just as it didn't materialize anywhere else in the country. There were bold predictions that Obama would get less than 30% of the vote in Oklahoma and perhaps Arkansas this year, but he easily broke 30 percent in both places. Just an example. Nationally, Romney came up about 3 million votes less than what John McCain managed against Obama in 2008. Very sorry performance.

2. The Libertarian factor bit hard. Add up the Libertarian vote and the Republican vote in both the governor's race and the U.S. Senate race, and there would have been a narrow but clear victory for the Republican candidates. The Tester supporters knew exactly what they were doing, and how to do it. It was sleazy, but it was brilliantly played. The only thing that could have saved the day would have been a personal barn-storming tour by Ron or Rand Paul, urging Montana Libertarians not to be stupid. There is a saying in surgery -- "the enemy of good is better." In a surgical setting, it means that once you have done something right, you don't try to improve on it by cutting just a little more, throwing in just a few more sutures -- more often than not, you will end up with unintended consequences that you won't be happy with.

Libertarians and Constitution Party people are like that in many ways. What they advocate for can often be arguably better than what Republicans deliver, but what really happens is that one gets neither "better" nor "good," but rather, "bad." You don't often see Green Party people splitting the Democratic vote in close elections. They save their posturing for places where the Democrat is sure to win.

One wishes that conservative purists would learn that same lesson.

By no means would Rick Hill or Denny Rehberg have received all of those votes in a two way election. But they would have received the lion's share, and that might have made the difference.

Anyway, I was wrong about these two races, and I feel bad for both candidates. They gave it their all, and we were lucky to have them running.

Initiatives -- go figure...:

So the same Montana electorate that voted for pro-choice Jon Tester and Steve Bullock passed a parental notification initiative for abortion in minors by an overwhelming margin. They voted to uphold the legislature's restrictions on medical marijuana. They voted for pro-Obamacare Tester and Bullock, but also voted to prohibit an individual mandate in health insurance in Montana. They voted for the party of amnesty, and yet they also voted overwhelmingly to restrict state benefits going to illegal aliens. Of course, they also voted not to give constitutional rights to corporations, which leads to the conclusion that Montanans have a tendency simply to vote in favor of just about any ballot initiative that comes in front of them. Hm. Maybe we should collect signatures for a ballot measure banning the Democratic Party.... Just kidding!

Montana Supreme Court

It appears that Laurie McKinnon will win election to the state Supreme Court, for which I am glad, based on what I know. Just having a former District Court judge on the bench will help, as long as she doesn't drink the judicial Koolaid in Helena. Montana's Supreme Court is consistently at or near the top of the list when it comes to the rate of overturning lower court decisions. I remember chatting once with a former Supreme Court justice who had previously been a district court judge. He noted that the other justices who hadn't been lower court judges frequently need to be reminded that appellate courts cannot make new determinations of fact -- that they can only rule on legal and procedural matters and must accept the factual findings of the lower court as binding.

I hope that McKinnon will have the strength of character to stand up -- persuasively (since she will be only one vote) -- on the Supreme Court on behalf of her former fellow District Court judges.

It is critical not just that we have Supreme Court members who think fairly and sensibly. They must also be leaders and be persuasive. Those who don't lead end up following. Consider the other Supreme Court "race" this year, in which Justice Morris ran unopposed for re-election. There were great hopes for Morris, since he had clerked for Chief Justice Rehnquist. His subsequent career on the Montana Supreme Court has, by all reports, indicated that he didn't learn anything substantive from Rehnquist -- or forgot it as soon as he arrived on Montana's high court. If there are any examples of Morris issuing stinging and intellectually persuasive dissents to controversial Montana Supreme Court decisions, I've not heard of them.

More on Monday, when we will talk about the Montana PSC situation as part of our energy coverage.